The core fact needed to make sense of this situation is that while CSJ is fundamentally anti-liberal in theory, it’s also managed to become deeply entrenched in foundational liberal institutions in practice. In order to execute this manoeuver, CSJ’s inherent anti-liberalism has been modified as necessary to succeed within such presumptively liberal enclaves as academia, journalism, business, and law. In the process, the boundaries between post-liberal progressivism and progressive liberalism have often been deliberately blurred.
In their seminal text, Critical Race Theory: An Introduction (NYU Press, 2001), for example, Richard Delgado and Jean Stefancic explain that:
Unlike traditional civil rights, which embraces incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law (p.3).
In the 2017 updated edition of the same book, they ask: “What is the situation of critical race theory today?” Instructively, they note that:
Critical race theory is taught at many law schools and has spread to other disciplines and countries. Some judges incorporate its ideas into opinions, often without labeling them as such. Lawyers use critical race theory techniques to advocate on behalf of clients and to expose bias within the system . . . critical race theory remains a dynamic force on the American legal and cultural scene (pp. 77, 91).
The fact that critical race theory is incorporated into judicial opinions “often without labeling” it as such is emblematic of the confusing interpolation of post-liberal progressivism and progressive liberalism. The “rule of law” is, after all, a bedrock principle of liberalism. If judges entrusted to manage it are incorporating anti-liberal theories into their decisions that aren’t flagged as such, it’s very hard for ordinary people who support liberal values but aren’t legal experts to decipher what’s going on.
Anti-liberal feminist theory has had a particularly powerful impact on policy and law. (Of course, not all feminism is anti-liberal. Liberal feminism, however, is definitely not part of the CSJ paradigm.) Radical feminist and legal scholar Catharine MacKinnon, for example, argues forcefully against liberalism in her enormously influential book, Towards a Feminist Theory of the State (Harvard University Press, 1989):
Liberal legalism (is) a medium for making male dominance both invisible and legitimate by adopting the male point of view at the same time as it enforces that view on society . . . In the liberal state, the rule of law — neutral, abstract, elevated, pervasive — both institutionalizes the power of men over women and institionalizes power in its male form (pp. 237-238).
Liberalism, in other words, only pretends to be committed to equal rights for all. In reality, it’s a perniciously powerful way of constructing, legitimating, and enforcing men’s oppression of women.
If MacKinnon has been uncompromising in her denunciation of the liberal legal order, however, she’s also had enormous professional success within it. A chaired professor at Harvard Law School, her extraordinary scope of accomplishment is summarized on her faculty web page:
She conceived sexual abuse as a violation of equality rights, pioneering the legal claim for sexual harassment as sex discrimination in employment and education; with Andrea Dworkin, she recognized the harms of pornography as civil rights violations and proposed the Swedish Model to abolish prostitution. Her approach to equality has been largely accepted in Canada and elsewhere.
